Case Information

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993-15

COURT OFCRIMINAL ORIGINAL APPEALS OF TEXAS

James Butler The STATE of Texas ReceivED IN CausE NO. OCT 052015

Abel Acosta, Clerk

Texas and the Court of Appeals for the Seventh

District of

PEtition for DISCRETIONARY REVIEW

FIIED IN COURT OF CRIMINAL APPEALS OCT 062015

Abel Acosta, Clerk

James Butler No. 1993 F32

Pro-SE

*2 No. 07-15-00020-CR IN THE COURT OF CREMENAL APPEALS OF TEXAS James Butler V.

The STATE OF Texas Petition in Cause No. 2009-424.522 From the 364th District Court of Luigiash Cautry, Texas and the Court of Appeals for the Seventh District of Texas at Amarillo Supreme Judicial District of Texas

*3 PETITION for DISCRETIONARY REVIEW TO THE HONOR ABLE JUDGES OF THE COURT OF ERIMINAL APPEND. OF TEXAS:

James Butler, petitions the court to review the Judgment affirming his conviction for possession of 4-200 araus of a controlled substance (crach cocaine—penalty group I) with intent to deliver in cause No. 2000-424, 522.

STATEMENT REGARDING ORAL ARGUMENT Appellant request oral argument for a fair review on the united states constitutional violated.

STATEMENT OF CASE Appellant (Butler) was charged by indictment for possession of 4-200 araus of a controlled substance (crach cocaine penalty group I) with intent to deliver. He was convicted by July on November 14, 2014 and sentenced to sixty-five (65) years in the penitentiary. The conviction was affirmed by the court of Appeals for the seventh District on July 1, 2015.

STATEMENT OF PROCEDURAL HISTORY The court of appeals rendered its decision affirming petitioner conviction on July 1, 2015. No motion for reticaring was filed by petitioner and the decision of the court of appeals became its finale ruling on July 1, 2015. This petition was then file with the clerk of the court of appeal within sixty-bol days after such final ruling, to wit on October 5, 2015.

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TABLE OFCONTENTS

Index of Authorities Statement Regarding Oral Argument Statement of Case Statement of Procedural History Ground for Review Reason for Review Prayer for Relief

INDEX OF AUTHORITIES

AdKinis v. State 675 S.w. 2 d 604 (Tex.APP.-elPaso 1984). Barraza v. State 900 S.w. 2 d 840 (APP. B Dist 1995). Bernard v. state 207 S.w. 2 d 359 (APP. 14 Dist 1991) Bodin v. State 782 S.w. 2 d 252 (Tex. APP-Houston 14 Dist 1989). candemv. State 134 S.w. 3 d 254 (Tex. APP. Amarillo 2004). corrillov. state 98 S.w. 2 d 729 (Tex. APP. Amarillo 2003). Davidà v. State 169 S.w. 3 d 732 (Tex.App Austin 2005). Davis v. State 165 S.w. 3 d 393 (Tex.App.-forthworth 2006). Hans v. state 124. S.w. 3 d 201 (Tex.App. Earth. worth 2006) Inno v. state 216 S.w. 2 d 474 (Tex. APP. Texarkana 1991). Moreno v. state 415 S.w. 3 d 224 (Tex. crim. APP. 2003) Sadler v. state 905 S.w. 2 d 215 (Tex. APP-Houston 130 Dist 1995). Salazar v. state 206 S.w. 2 d 291 (Tex. APP-Amarillo 1991). Serrano v. state 123 S.w. 3 d 53 (Tex.App Austin 2003).

CONSTITUTIONS

Forth and Fourteenth Amendment of United States constitution Article I section 4 of Texas constitution 1.5

STATUTES AND Rulks

Federal Rules of CRIminal Procedure Rule 41 (b) ( The clarts Record will be cited as "R" followed by the page number and Reporters Record will be cited as "RR" followed by the volume and page number.)

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GROUND FORREVIEW

The court of appeals erect in Holding that final court properly refused to grant the petitioners motion to suppress do to the illegal search and seizure at 215 east 36 th street. Point of error 1. The search warrant that was issued for the residence 215 east 36 th street was defective under the probable cause requirements of the united states and texas constitution. The affidavit did not state when the actual transaction took place and it is impossible to determine from contents of the affidavit was the purchase controlled. Point of error 2. The affidavit is not sufficient under the totality of the circumstance to establish probable cause for a search warrant the tip the affiant-officer received was not asserted to be e redible or reliable and without facts to support the assertion the information he received is inadequate. (CR pp. 106-28) Point of error 3. The information that is in the affidavit is false the statements the affiant made was only to establish probable cause for the issuance of a search warrant. In the appellants affidavit the affront averted that while working in an undercover capacity affiant has received information that cocaine base was being reafficked, and possessed at 215 east 36 th Street. The affidavit was filed on August 5 2000 the officers testimony reveals he did not have probable cause he never heard of the location before the signing of the affidavit. (Chaves testimony) RRIX 62. A. Okan. As matter of fact the first time you heared about 215 east 36 th street is a few days later when you make your affidavit? A. That's correct. Q. And Just to be clear you all had never heard of James Butler or 215 east 36 th street prior to that date: is that correct? A. That's correct.

The court of appeals affirmed appellants conviction base on the alleged 'controlled purchase' that occurred at a different location than 215 east 36 th street. The affront fail to mention in his affidavit for a search about an undercover buy that occurred at 1510 east eormell targeting chico tories. RRIX 62. Q. Okan. now Just let me ask you this: was the plan for the 'controlled' purchase from chico tories or was it for chico at that address an eomei? A. Cornell.

*6 The officers testimony reveals that the purchase of cocaine was for chico tomes at 1510 east carnell this provides substantial evidence that the search warrant affidavit for the residence 215 east 36 th street was insufficient to establish probable cause. The court of appeals erred in revieving the record, the officer-chavee mistred the magistrate he did not assert that the subject chico tomes observed appellant in possession of narentics. The affiants statements in affidavit was in order to gain entry to the location, Chavez stated that he arranged a controlled purchase with a subject who he has made a controlled purchase with an a previous occasion. (CRp. 107) The subject chico was his target he had never used this subject before, and when order by trial court to produce the report of that one previous purchase to corroborate his probable cause affidavit he could not produce the report. The facts are as follows: RRIX 57. 0. Okaw. Do you have a report from where you had ever purchase drugs from chico, tomes prior to the date of the search warrant. August 5 that's what you get in your affidavit, are you certain you purchase drugs from chico before that? A. Yes. 0. Okaw. Is there a report if you purchase from chico tomes at least one time before yourself last Michael Chavez, there would be a report on that? A. There would be, But like I explained it, it could be with the informant also. Q. Leave the informant alone. A. Okaw. Q. Michael Chavez individually, there would be a report? A. That's correct. Q. Is that report in front of us today or does that report exist? A. If there was a report you'd have it. Q. If there was a report at you purchasing from chico tomes individually Just yourself, I would it? A. That's correct.

The court of appeals erred in affirming appellants conviction do to officer michael chavez statements in search warrant affinavit about an alleged controlled purchase to establish probable cause for the issuance of a search warrant for 215 east 36 th Street. The affiant stated he went to chico tomes house to get chico to take him to his dealer, but his testimony reveals what kind of respect he has for procedure. 4. I wish over there with the intent to get chico to take me to his dealer. 0. Why is that not mentioned anywhere in your report or the affidavit for search warrant? A. I didn't think that was an important part for this.

*7 The court of appeals erred in affirming appellants conviction in habit of illegally obtained evidence admitted at trial the officer rieve conducted a investigation or surveillance as the resirieve. The affidavit was silent as to any short dugation wisits which would consist of drug trafficking, the officer was not aware of any thing about the address. RRviI 66. O, were you aware of that address as 36th Street prior to that Transaction? A. No I was not.

Point of error 4. There was no way the magistrate could tell if the information in the affidavit was state or not it had no time statements on a actual date. The officer left the date out of the affidavit but asserted it in his report and the affront testified that the wrote two different statements in the affidavit and the report. RRviII 54. A. What is that? A. August the 3rd here. I have what we call-we explained earlier and undercover buy walk operation report. A. oray. But in your affidavit for search warrant you referred to it as a controlled purchase for cocaine base: is that correct? A. That's correct.

Point of error 5. The purchase in the affidavit was not an controlled purchase the officer testified as an undercover buy walk, the officer did not have control over the subject! the subject was not searched at any time prior to the the purchase which is required in controlled buy situations. RR viII 166. a. All right. Now in a controlled buy or a controlled purchase through and informant you wire the informant? a. That's correct. a. That's correct. And you search them to make sure they don't have any money other than what you give them is that correct? A. That's correct. a. And you search them to make sure they have no narcotics on their person: is that correct? A. That's correct.

The court of appeals erred in its analysis in reports to the controlled purchase that is stated in appellants affidavit for search warrant.

*8 The affidavit is silent as to if the aflant searched the subiect to be sure if the subiect had nareoties on his persan. RR viII 167. O. Okay. In this case, chico was not searched: is that correct? A. That's correct. B. Okay. So in fact, you dant know if chico had crack cocaine on him prior to the purchase or not do you? A. No. I dant.

The aflant never testified that the subiect chico tomes was on unknowing partici part the state added that statement. The court of appaels erred in affiming appellants conviction do to the alleged controlled purchase that is stated in the affidant there was no unlawful incident that occurred at 215 cast 36 th street. RRIX 63. O.Okay, how where did mntores actually give you the dope that was the basis of the search warrant? A. Back on Conall. B. Back on Cornell. In other words, there was no Trans ection between mitores and you there at the 36 th street location? A. No.

The appellant has provided the court of criminal appeals substantial evidence that the testimony of the affieer that excited warrant told the truth, about the events in the affidant did not have probable cause for the issuance of a search warrant for the residence located at 215 cast 36 th street. The afficer has admitted that the purchase of narcotics was for 1510 cast comell taratting chico tomes. RIVIII 215. O. Okay. And the reason I ask that, in your search warrant it says nothing about using and cinwitting or unknown participant to go purchase drugs from a third party. Your affidant says you were going to buy dope from chico Torres: is that correct? A. That's correct.

The trial testimony from aflant-chavez is under oaths it proves that the court of appeals erred in affiming appellants conviction based on the controlled purchase that was not properly orchestrated. The affidavit go on to state that aflant provided subiect us. Currency for the purchase of cocaine base from a subiect with the alias "at" inside the listed location.

*9 The affiant did not have any indication who was in the location at the time of the alleged transaction. RR IX 63. 0. oray so there's no indication of who Mr Torres may have or may not have purchase gope from in that location? A. Inside the location? Q. YE5. A. NO. O. All. right And I dait see anything in your affidavit or in your report where ChieD Says he publicase cocaine from Jonses Butler, chato wician, Tabijus Butler anybody in that house He never did say specifically who he bought it from: is that correct? A. That correct.

In the tatolity of the circumstances analysis: the affidavit is insufficient to establish probable cause the court of criminal appeals have consistently, neversed case similar to appellants if not just like it and a failure to reverse this case will be a fundamental miscarriage of justice. The appellant understand that when he challenges the validity of search warrant and when state introduces faciatly valid searchwamant the burden of proof is an appellant to go forward with evidence to show invalidity of warrant. The appellant proved beyond a reasonable doubt that the search warrant affidavit was defective under the probable cause requirement, of the United States constitution as well as the texas constitution article 1 section 9. The officers actions and statements is a result of simple negligence and the issuing magistrate wholly abandon her judicial role and instead of serving in a neutral and detached manner became merely a rubber stamp for the police. The court of appeals did not examine the entire record they based there decision off certain statements in the affidavit instead of applying the tatolity of the circumstances test which is used by there sister courts. The appellant proys, that the court would examine the record for the truth and make a fair and right decision.

*10 REASON ER REVIEW

The affidavit that was issued for 215 East 36th street was insufficient to establish probable cause the court of appeals fail to adopt the totality of the circumstances test that other court of appeals and the court of criminal appeals has used to determine if probable cause exist in a search warrant affidavit. Barraza v. state. 900 S.w. 2d 240 (App. 13 D. 1499).

The court of appeals in appellants case, fail to apply the same analysis as other courts of appeals specifically, states the veracity and basis of Knowledge of person supplying the necessary information used by a Plant in support of search warrant are relevant consideration in the magistrate totality of the circumstances.

Caribona v. state. 134 S.w. 3d 294 (Tex. App. Amarillo 2001).

In the appellants case that is before the court the affidavit did not provide veracity and basis of Knowledge, there was no basis for predicting the necessary in the affidavits trip, there was no consideration of facts to provide justicia of reliability regarding the trip.

Davis v. state. 165 S.w. 3d 393.

The court of criminal appeals, lock at the totality of the circumstances, regarding information contained in the affidavit.

The court of appeals decision conflict with the court of criminal appeals in regards to the probable cause requirements of the Texas Constitution. The court of criminal appeals held that the affidavit in Imov. state, did not state when actual sale occurred and it was impossible to determine from contents of affidavit when any individual possessed eccealise at the residence. The court held that the affidavit was defective although affidavit clearly stated that undercover police officer gave information to a Plant regarding undercover officer purchase of cocaine at residence named in affidavit within 21ths. 21th hours prior to affidavits serving, affidavit.

In appellants case affidavit did not state when the controlled purchase took place as the same in Imov. state, the Texas Court of criminal appeals has repeatedly held that and affidavit which does not demonstrate when the unlawful incident took place is insufficient to support issuance of a search warrant.

Imov. state 216 S.w. 2d 974 (Tex. App. Texarkonia 1991).

*11 In apptlants case the aflitant stated that he received information that eproine base was be ing trifficted, and possessed at 245 eest both Strect the serrano, colut held that the aflidavit was insufficient to support the issuance of a search wavrant, as noted the tip gave up time as the occurrence of the erininal activity set out in the aflidavit. serrano v. state 103.5.w. 3453 The court of appools decision in apptllants case also conflict with the probable cause analysis in the Divilav. state at 139. when the court stated that the aflidavit did not state whether the informer had actually segen the alleged contimband or was merely regeating hearsay intormation. The aflidavit foll to say when the intormer got the intormation or when the afficer received the tip the Court also held that because the aflidavit did not say when the tip was received there was no point of reference, that contraband was being possessed at that location. State V. Dovila. 1645 w 3d 732 The appellants reason for review is supported by the court of erininal appools in Davis v. state at 1622 when it held that even if the facts provided to afficers by intormants taken as a whole would be sufficient to establish probable cause, the aflidavit still must contain intormation that would allow the magistrate independently to deternine the credibility, relabitity, or basis of trivandage as the sources of the effects. Bov. 5 v. state 1655 w 3d 343 In apptllants aflidavit for search wavrant it stated within the past 18 hours the aflant anonged a controlled purchase for cocaine base with a subset who the aflant has made a controlled purchase with an a previous occasion. (CRp 107) The aflidavit foll to state that the subject the aflant has used to is coledict. a controlled purchase within an previous occasion was relable or if that previous occasion led to marieatios seizure. In adrin the lipaso ebutt of appools held an aflidavit insufficient because it did not indicate whether the source of the tip was direct observation or reliable hearsay it did not indicate a basis for the intormants reliability such as past pentormance and did not explain the news between the original tip and the affices corroboration details. Adrin v. state 6755 w 2d 607.607 (Tex. App elPaso 1981). rev'd The court of appools decision conflict with the court of appools in the Camillo v. State when establishing the difference between a controlled 'buy' purchase and a undercover buy. The court of appools held when the appellant in the carillo case,

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• Lubein he conicded as much' at the lieaning on his motion to support in his brief, and in a motion to reenrester the suppression motion when he stated the subject was not working as a police informant thus she was not seareled at anything during the transaction the court of appeals held that was true and cases involving controlled boys was not applicable in the comilo case. The court of appeals stated that if the subiect was a confidential informant, and fivou that was a police officer, she might have been motivated, to misleas thea, as to the seance of the cooaine to absolue herself of liability of to get appellant in trouble for some unthrown reason. The court of appeals spee: Really states that this potential to mislead police is the basis for the prophylactic measure taken in controlled bueg situation. Eernillo u. state 983 w3d 789 (Tex. App. Am a nillo 2063). The subiect in appellants case was not seareed at anytime during the transaction the officer did not have control over the subiect or the situation The court of appeals in carnillo stated in eases in which probable cause is based on information provided by anonymous informants and in controlled boys where policeuse citizen as an active participant in original investigation courts necessarily treat the informants information with a dearee of suspicion. In sadier $u$ . state the court of appeals held that the controlled boys was sufficient to establish probable cause because the officer seareled the informant before sending him into suspected previous tion controlled boys. Sadier $u$ state 9056 w 2 d 21 (Tex. 100 -Houshousist Dist J 1995). In appellants case that before the court there are no statements in attidawit about any personal observation from the tion or the subiect chito tories. The court of appeals in Salazar u. state held an affidavit was sufficient in a controlled bue under the circumstances set out in the affidavit there was evidence of reliability of the informants information to justify a magisterial conclusion that probable cause for issuance of a search warrant was shown. The courts held that conclusion is strengthened by the statement that the informant saw a usable amount of misri, Juma in the resident in appellants possession. Salazar u.state 2063 w2d2al (Tex. 100 - Am a nillo 1991).

*13 The question in appellants case is whether the officer executing the warrant could have harbored an objectively reasonable- belief in the existence of probable cause to search the home. The effort had no physical evidence of the alleged controlled purchase you would think that the officer would have reported the illegal sale of narcotics as soon as possible, after the occurrence not as much as recent was made within that last 75 hours the information would not have been state. In Harris v state the court of appeals held that the controlled buy of cocaine alleged by condycted by confidential informant was not sufficient by itself to com- marate informants statement that he made controlled buy in certain apartments for the purpose of deterning whether there was probable cause supporting issuance of a search warrant for apartment officer admitted he did not actually see the informant enter the apartment, in question, that he searched any the informants pockets and that the informant could have had drugs concealed else where an his body Harns v state 182.3 w. 3d. 200 at 804. All controlled buys are with confidential informant and they are - required to be searched prior to the transaction and after to be sure they have no money or narcotics an there person. Bookin v. state 782.3 w. 2d. 252 C-7ex. App. Houston 2002/1224. The court of appeals used mone conviction they stated it was similar to appellants case, but the court of appeals alludes the statement "controlled purchase." In mone conviction the police surveillance team observed the C.I. make contact with the unknowing participant. This individual told the C.I. that he would go to appellants house to pick up the coach cocaine. Police observed the individual go to Appellants house, cutler, and exit of few minutes later. The unknowing participant then drew straight to the prede sion and delivered the coach cocaine to the C.I. mone to the 2023.24 C.7ex. Crim. App. 20021. The mone case that was used to affirm appellants different but shows how the use of an unknowing participant is done in a controlled purchase situation. This case conflicts with appellants case in the mone case a C.I. is used to do purchase narcotic from a third party and the police toward was niorem, so they knew the destination where the controlled purchase was to take place. In appellants case the subject advised the gffiont that they had to do pick the narcotics up, at a different location which establish that 215 east 38 th street was not the location that was being targeted.

*14 The court of appeals Judgement in regards to the contents that is stated in the appellants search wastout affidavit there review and decision went outside of the four corners of the document. In particular, the court of appeals alleges the following outside the four corners in formation in there probable cause analysis. That officer Chavez-effiant was undercover and arranged a controlled purchase for himself from a unidentified person but in his testimony and in his report the subject was identified as the target and name was stated. The affiant Chavez never stated in the affidavit that he was making an undercover purchase of cocaine using an unknowing participant, to go purchase from a third party. The Barraza court stated a court must apply the totality of the circumstances standard in testing sufficiency of affidavit in support of search wastout. His application only goes to the circumstances included in the affidavit. The information adduced later which was not before the magistrate at the time he or she considered the affidavit and issued the wastout cannot be considered by reviewing court Barraza v. State 900 S.w. Ad 240. The court cried in reviewing the affidavit under the totality of the circumstances standard that has been used by other courts of appeals and court of criminal appeals. In Morena v. state, the confidential informant was searched prior to meeting the unknowing participant in the controlled purchase. The appellants, case is an controlled purchase that is not controlled, like the morena case the court held that the affidavit in appellants case mentions no confidential informant But, the other relevant circumstances here and in morena are surprisingly similar. In morena the observation of the purchase and the reliable tip from the clovis deus Mexico police department established probable cause for the issuance of search wastout for movemos residence.

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The court of appeals decided important question of state and Federal law in conflict with applicable decision of court of criminal appeals and the Justices of the court of appeals displayed upon material question of law necessary to court decision. In Harms's state the court held the controlled bony alone was not enough to establish probable cause the court stated that the evidence was not enough it is a well-established, tenet of constitutional law that the information from the unnamed informant alone will not establish probable cause. The tenet applies equally to the unnamed tipster. As our sister Court in Austin has noted in evaluating whether anonymously provided information suffices to support a finding of probable cause, the information very, to reliability and basis of information are still highly relevant factors. The anonymously provided information must explain some, indicia of reliability of before it can be used to justify a search. Moreover the court held that mere compensation of details that are easily obtainable at the time the information is provided will not support a finding of probable cause. In addition wholly conclusory statement in affidavit will not suffice because there is nothing to explain why he should be considered reliable and trustworthy. Harms's state is 5 w. 3d 80 (Tex. 1999 forth worth 2006). Apellants, affidavit did not mention nothing about the subject's reliability the alliant officer did state that he used him before, was he credibler was he trustworthy the affidavit is silent to that. To summarize appellants, affidavit the magistrate in this case was as to issue a search warrant on the basis of his conclusory statement by an source of unthouson, credibility that co- base was being trafficked and possessed at 316 east 36th street at some unstated time. The alliant unsupported assertion that a maratic transaction occurred frequently at the residence and with all due deference to the probable cause determination the totality of facts stated in the affidavit did not give the magistrate substantial basis for concluding that a search of the because could avoid uncover evidence of wrong doing. Davila v state, 1693 w. 3d 735 The probable cause affidavit was defective within its contents the facts are as follows:

AFFIDAVIT FOR SARCH WARRANT

CR p. 106-107 The undersigned APlant, being a Peace officer under the laws of Texas and being duly suwer, on oath makes the following statements and accusations:

1. There is in LuBuch county, Texas, A 3169ecte 0 Placed AND Person Described AND Located $A5$ follows: (The person is not described in this section)

*16 The residence is described as a single family structure with brown wood ziding, white teim and brown stride roof. The residence has a white inner front floor that faces cast. The front door is enclosed by a white storm door. The residence also has a white reor door that faces west. The numbers "315" are in black lettering on the south wall near the southwest corner. The south east window has attached an evaporative cooler. The residence can further be described as being the second residence west of cedar Ave. 2. There is at said suspected place and thenises Property cancelled and kept in viol. 1 Tians of the laws of the state of Texas and described as follows: Cocaine, Cocaine base and any other controlled substances, pachaging materials, scales, money, and any other contreband and/ or, items consistent with or indicative of trafficking of controlled substances and the containers which may contain them, any written or electronic devices that may contain records of illicit materies trafficking. 3. SAID suspected place and thenises are in eHurbe of and controlled by each of the following: A subject that is known by the alias 'cat' (No Description Just an alias). 4. If is the Belief of the Affiant, AND He Hereby changes AND Accuses That: Abave described person or persons intentionally and knowingly keep, conceal, possess, and traffic cocaine base, which is in violation of the laws of the state of Texas. (parapraah four states above described person or persons But there's no one described in the affidavit, which it specifically say to describe, so there no way to establish who possess e cocaine at the residence. Search warrant unnornnt for residence does not have to name person in charge of premises only where, warrant is issued to search for and seeze person for where ornes probable cause is stated is person required to be name. FED.Ruies.Crim.Proc. Rule 4100. In Bernand, v. state, the court held that it is not necessary to include the name of the offiunter in a search warrant. (This name is unknown it is sufficient to describe him, and it iss identity is also unknown it is sufficient to give that the premises are in control of parties unknown to the affiant. Bernard v state 3075 . . 28359. (App. 14 Dist 1991). The search warrant affidavit that is before the court is not sufficient to establish probable cause there are to many gaps to be filled with quezes there are no dates, notime statements no description, no evidence, not testimony from anyone but the affiant who testimony prove he did not have probable cause for the search warrant for 315 east 36 th street.

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CONCLUSION

The court has repeatedly overtumed convictions which do not pass the totality of the circumstances test the alleged events in the affidavit was not a controlled purchase. There's distinct difference between a underpower buy and a control buy all, it takes, is a reasonable reading of all controlled buys cases in the appellants petition. The affront's testimony at trial about the event reveals the truth about the events described in the affidavit. There were no witnesses to this allege controlled purchase there's no statements made no reports of this unlawful incident nothing to corroborate the effect's statement that is in the affidavit there is nothing but a affidavit with no evidence. The officer did not have, probable cause for the issuance of a search warrant from trial testimony, the search warrant should have been suppressed.

PRAYER

I ask this Court to reverse and remand this case to the trial court, with instructions that the affidavit did not provide probable assurance that control band or evidence of criminal activity would be present in the home and that the Motion to suppress should have been granted.

Respectfully submitted.

*18 In The Court of Appeals Sebenth Bistrict of Texas at Amarillo

No. 07-15-00020-CR

JAMES BUTLER, APPELLANT V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2009-424,522, Honorable Bradley S. Underwood, Presiding

July 7, 2015

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

James Butler was convicted of and sentenced to sixty-five years in prison for possessing crack cocaine with intent to deliver. He now challenges the conviction by attacking the trial court's denial of his motion to suppress evidence found during the execution of a search warrant. According to appellant, the affidavit in support of the warrant was insufficient to establish probable cause to support a search. That is, he believes the allegations contained in the affidavit were insufficient to create a

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reasonable probability that contraband would be found at the location to be searched when the warrant issued. We affirm.

Background

Officer Michael Chavez with the Narcotics Division of the Lubbock Police Department executed an affidavit to obtain a warrant permitting the search of 215 E . 36th. In his affidavit, he averred that, within the past 72 hours, he had arranged a controlled purchase of cocaine for himself as an undercover officer from an unidentified person from whom he had made a prior controlled purchase. The affidavit further revealed that the officer met the unidentified person at a prearranged location and was informed that they would have to go to another location to acquire the drug. They then drove to 215 E. 36th Street. Further alleged in the affidavit was the following:

Affiant provided subject U.S. currency for the purchase of cocaine base from a subject with the alias "Cat" inside the listed location. Affiant observed subject enter the residence. Subject exited residence after approximately three minutes, which is consistent with narcotics trafficking. Subject entered back into affiant's vehicle and advised he/she had to weigh the cocaine base. Subject showed affiant a large piece of uncut suspected cocaine base. Subject advised that he/she had made a purchase of cocaine base for himself/herself and the affiant. Affiant then drove subject back to the prearranged location. Subject did cut a piece of the suspected cocaine base at this location and provide it to affiant. The suspected cocaine base was tested using a field kit. The suspected cocaine base did test positive for cocaine. Affiant has on many occasions observed cocaine, cocaine base, and other narcotics. Affiant is able to recognize controlled substances to include crack cocaine. Affiant has on many occasions conducted undercover narcotics purchases to include crack cocaine.

Authority

When assessing the sufficiency of an affidavit to support issuance of a search warrant, we apply a highly deferential standard to the magistrate's determination.

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Moreno v. State, 415 S.W.3d 284, 287 (Tex. Crim. App. 2013). Our duty "is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed' based on the four corners of the affidavit and reasonable inferences therefrom." Id., quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The probable cause to which we refer is nothing more than the existence of a fair probability that contraband will be found in a particular place at the time the warrant is issued. State v. Castro, No. 07-13-00146-CV, 2014 Tex. App. LEXIS 10620, at *9 (Tex. App.Amarillo, September 23, 2014, no pet.) (not designated for publication). This means that we are not dealing with " . . . hard certainties, but with probabilities." Moreno v. State, 415 S.W.3d at 288, quoting Illinois v. Gates, supra. And, in searching the four corners of the affidavit to find that fair probability, we do not concern ourselves with whether other facts could have, or even should have, been alleged; instead, our focus lies upon the combined logical force of the facts recited in, not omitted from, the affidavit. Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007).

Application

In Moreno v. State, the affidavit contained facts illustrating that 1) a police officer engaged a confidential informant to buy cocaine, 2) the officer searched the informant and determined he carried no drugs, 3) the officer observed the informant approach a third party to buy the drugs, 4) the third party indicated that he would have to go to another residence to get the drugs, 5) the officer observed the third party go to the other residence, enter it, and exit it, 6) the third party returned to the confidential informant and provided the latter with drugs, 7) the third party was not seen going to another locale before releasing the drugs to the informant, 8) the officer, who recognized

*21 cocaine, acquired the substance from the informant and field tested it, 9) the substance tested positive for cocaine, 10) the confidential informant, who himself could recognize cocaine, had provided reliable information to the police in the past, and 11) the facts recited in the affidavit occurred within 72 hours of the affidavit's execution. According to our Court of Criminal Appeals in Moreno, ". . . the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause." Moreno v. State, 415 S.W.3d at 288. The court further held that it "was reasonable for the magistrate [issuing the warrant] to infer that the . . . [third party] obtained the crack cocaine from Appellant's residence." Id. This is instructional at bar.

The affidavit before us mentions no confidential informant. But, the other relevant circumstances here and in Moreno are surprisingly similar. We have an officer/affiant witnessing that of which he spoke. We have an officer/affiant approaching someone to buy cocaine. The officer/affiant previously had acquired drugs from this prospective seller. The latter indicated that he had to acquire the substance at another location. The officer/affiant journeyed to the other location with the prospective seller in a vehicle. The officer/affiant watched the prospective seller enter the abode, exit the abode within minutes, and return to the vehicle. Upon his return to the vehicle, the prospective seller presented the officer/affiant with what the officer suspected was a "large" amount of "cocaine base." The officer/affiant was able to recognize "cocaine base." The prospective seller cut the substance and gave a portion of it to the officer/affiant. And, the officer/affiant field tested it, and the substance tested positive for cocaine. As in Moreno, the affiant's observations of the purchase and the

*22 reasonable inferences therefrom were sufficient to enable the magistrate issuing the warrant to reasonably infer that cocaine was obtained from the house to be searched.

Given that the officer/affiant had previously bought drugs from the prospective seller, the seller wanted cocaine for himself, the seller went to and obviously knew of a particular location at which he could buy cocaine, and the seller exited the location with a "large" quantum of the drugs sufficient to divide with the officer/affiant, the magistrate issuing the warrant also had basis to reasonably infer that the abode from which the drugs were acquired was one from which cocaine was periodically sold. This, in turn, rendered it likely that drugs could be found at the location to be searched at the time the warrant issued.

We finally note that appellant alludes to a plethora of circumstances to attack the reasonable inferences in which the magistrate could have indulged. Yet, those circumstances do not appear within the affidavit. So, we cannot consider them. Again, our review is restricted to the four corners of the affidavit.

Accordingly, we affirm the trial court's denial of the motion to suppress.

Brian Quinn Chief Justice

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